Gujarat High Court
Mansukh Alias Ravji Gorasiya vs The State Of Gujarat on 11 September, 2020
Author: Umesh A. Trivedi
Bench: Umesh A. Trivedi
C/SCA/8809/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 8809 of 2020
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MANSUKH ALIAS RAVJI GORASIYA
Versus
THE STATE OF GUJARAT & 2 other(s)
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Appearance:
MR JAY N SHAH(10668) for the Petitioner(s) No. 1
MS.NAMRATA J SHAH(6534) for the Petitioner(s) No. 1
MR. UTKARSH SHARMA, ASST. GOVERNMENT PLEADER(1) for the
Respondent(s) No. 1,2,3
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CORAM: HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
Date : 11/09/2020
ORAL ORDER
[1.0.] This petition is filed praying appropriate writ, order or direction for releasing the vehicle bearing Dumper No.GJ-12-V-6037 of the ownership of the petitioner, which is seized by the respondents and at present the case is pending before the respondent, on such terms and conditions as this Court may deem fit.
[2.0.] In support of prayer made in this petition, Ms. Namrata Shah, learned advocate has submitted that, though the seizure was effected by "B" Division Police Station, Bhuj on 18.5.2020, the notice in Form-J under the Gujarat Minerals (Prevention of Illegal Mining, Transportation and Storage) Rules 2017, (hereinafter referred to as "the Rules, 2017) came to be issued only on 22.06.2020. According to her submission, they have delayed the proceedings for issuance of the notice. According to her submission, since 45 days, as stated in Rule-12(2)(b)(ii)of the Page 1 of 5 Downloaded on : Wed Feb 24 05:43:30 IST 2021 C/SCA/8809/2020 ORDER Rules, 2017, are over and when Authorized Officer has not filed the complaint in the Court, the vehicle in question has to be released without any conditions, which is involved in illegal mining. In support of her submission, she has relied on a judgment rendered by the coordinate Bench of this Court dated 26.08.2020 in Special Civil Application No.9203 of 2020. Drawing attention of the Court to para-11, later part of it, she has submitted that this Court has held that in absence of the complaint, the competent Authority will have no option but to release the seized vehicle without insisting for bank guarantee.
[3.0.] As against that, Mr. Utkarsh Sharma, learned AGP, submitted that in view of Rule 12 (2) (a) of the Rules, 2017, while issuing notice in Form J, the authorized Officer to release the property so seized upon receipt of a bank guarantee for an amount equal to penalty payable under rule-21, in case of transportation of, or causing to transport, mineral without lawful authority or written down value of the property, in case of illegal mining or illegal storage of mineral. Drawing attention of the Court to sub rule (1) of Rule 12 of the Rules, 2017, it is submitted that the property includes the mineral as also the vehicle. Therefore, according to his submission, even while issuing the notice in Form J, the authorized officer is empowered to release the property as defined under sub rule (1) of Rule (12) of the Rules, 2017 on production of bank guarantee on the written down value of the property, in case of illegal mining or illegal storage of mineral. Drawing attention of the Court to explanation of Rule-12(2) of the Rules, 2017, it is submitted by Mr. Utkarsh Sharma that the property under these rule is seized as a security against the amount of penalty due to Page 2 of 5 Downloaded on : Wed Feb 24 05:43:30 IST 2021 C/SCA/8809/2020 ORDER the Government and to ensure the presence of the alleged offender before the Government if the case is at notice stage. It is further submitted that if authorized officer is satisfied that compoundable offence in respect of property committed subject to receipt of compounding application, he has to order payment of such amount for compounding, if not paid within 30 days may be recovered by invocation of Bank guarantee furnished under Clause-(a) of sub-rule (2). Therefore, he has submitted that even if the authorized Officer fails to file any complaint and conclude the inquiry / investigation in respect of illegal mining, there cannot be any automatic release of a property without there being any security for the same ensuring the presence of alleged offender and it is subject to payment of penalty for illegal mining.
[4.0.] Considering the submissions and scheme of the Rules, 2017, to dissuade illegal mining, Rule-12(2)(a)(i) & (ii) provides release of property seized upon receipt of the Bank guarantee while issuing notice in Form-J informing the person from whom property is seized. The proviso thereto speaks about release of property as aforesaid is without prejudice to conduct of investigation and other actions contemplated under Clause-(b) of the sub-rule (2) of the Rules, 2017.
[5.0.] Rule 12 (2) (b) of the Rules, 2017 provides that if while conducting investigation, it is found that compoundable offence is made out, subject to receipt of compounding application, the authorized officer can order payment of such amount for compounding the offence as may be deemed appropriate. However, that is also as prescribed under Schedule-III not leaving it to the whims of the authorized officer. Rule (12)(2)(b)(ii) envisages Page 3 of 5 Downloaded on : Wed Feb 24 05:43:30 IST 2021 C/SCA/8809/2020 ORDER the eventuality where compounding is not permissible under rule- 22 of the Rules, 2017 or if authorized officer is satisfied that the offence committed in respect of property is not compoundable, on expiry of 45 days from the date of seizure or upon completion of investigation which is earlier, the authorized officer shall approach by way of making a written complaint before the Court of Sessions. However, in case such written complaint is not made, as aforesaid, it doesn't entail in automatic release of vehicle, that too, without any condition of Bank guarantee as provided in Rule 12 (2)(a) of the Rules, 2017. A situation is also envisaged that the investigation may continue beyond 45 days also in some cases. The provisions for approaching the Court by way of making a written complaint is with a view to see that no undue delay is caused in concluding the proceedings by the authorized officer. The other purpose behind it appears to be empowering the concerned Court to order release of property / vehicle pending the adjudication before it. However, the jurisdiction of the concerned Court to order release of property / vehicle can never be without any condition.
[6.0.] At any rate, failure to approach by way of making a written complaint before the Sessions Court within 45 days doesn't entail in automatic release of property, that too, without any condition or Bank guarantee as envisaged in Rule 12 (2)(a) of the Rules, 2017.
[7.0.] Thus, matter, prima-facie, requires detail examination of Rules, 2017. Hence, RULE. Learned AGP Mr. Utkarsh Sharma, waives service of notice of rule for and on behalf of the respondent
- State. However, property seized including vehicle cannot be Page 4 of 5 Downloaded on : Wed Feb 24 05:43:30 IST 2021 C/SCA/8809/2020 ORDER retained and it is required to be released on suitable terms and conditions.
[8.0.] It appears that, at the initial stage, the petitioner himself pursuant to a notice in Form-J issued by the authorized officer vide communication dated 01.07.2020 shown his willingness to give Bank guarantee of Rs.1,00,000/- pursuant to the notice requiring him to give it for an amount of Rs.89,412/-. It appears that subsequently, he backed out from his willingness furnishing Bank guarantee. Be that as it may, the documents pertaining to vehicle, which is annexed with the petition, stands in the name of one Sodha Gemarsinh, who is the 4 th owner as reflected from the said registration certificate of the vehicle. The petitioner has produced certain documents in form Nos.29 and 30 of the Central Motor Vehicle Rules, duly signed by registered owner of the vehicle putting date to be 12.03.2020. However, there is no signature of the petitioner in those Form Nos.29 and 30 to be purchaser of the said vehicle. Not only that, there is no document produced by the petitioner that such forms have already been submitted to even concerned Regional Transport Office for effecting change in the same.
[9.0.] Thus, the authorized officer is directed, pending final disposal of this petition, to release the property / vehicle, after obtaining necessary continuing Bank guarantee as shown in the notice Form-J and on fulfillment of other requirements by the petitioner.
(UMESH A. TRIVEDI, J) K.K. SAIYED / LALJI DESAI Page 5 of 5 Downloaded on : Wed Feb 24 05:43:30 IST 2021